CRS Annotated Constitution

Retroactivity
Versus Prospectivity.—One of the distinguishing features of an advisory
opinion is that it lays down a rule to be applied to
future cases, much as does legislation generally. It
should therefore follow that an Article III court could
not decide purely prospective cases, cases which do not
govern the rights and disabilities of the parties to the
cases.487 The Court asserted that this principle is
true, while applying it only to give retroactive effect to
the parties to the immediate case.488 Yet,
occasionally, the[p.684]Court did not apply
its holding to the parties before it,489 and in a
series of cases beginning in the mid–1960s it became
embroiled in attempts to limit the retroactive effect of
its—primarily but not exclusively490—constitutional–criminal law decisions. The
results have been confusing and unpredictable.491

Prior to 1965, “both the common law and our own
decisions recognized a general rule of retrospective
effect for the constitutional decisions of this Court . .
. subject to [certain] limited exceptions.”492
Statutory and judge–made law have consequences, at least
to the extent that people must rely on them in making
decisions and shaping their conduct. Therefore, the Court
was moved to recognize that there should be a reconciling
of constitutional interests reflected in a new rule of law
with reliance interests founded upon the old.493
In both criminal and civil cases, however, the Court’s
discretion to do so has been constrained by later
decisions.

When in the 1960s the Court began its expansion of the
Bill of Rights and applied the rulings to the States, a
necessity arose to determine the application of the
rulings to criminal defendants who had exhausted all
direct appeals but who could still resort to habeas
corpus, to those who had been convicted but still were on
direct appeal, and to those who had allegedly engaged in
conduct but who had not gone to trial. At first, the Court
drew the line at cases in which judgments of conviction
were not yet final, so that all persons in those
situations obtained retrospective use of
decisions,494 but the Court then promulgated
standards for a balancing process that resulted in
different degrees of retroactivity in dif[p.685]ferent cases.495 Generally, in cases in
which the Court declared a rule which was “a clear break
with the past,” it denied retroactivity to all defendants,
with the sometime exception of the appellant
himself.496 With respect to certain cases
in which a new rule was intended to overcome an impairment
of the truth–finding function of a criminal trial497
or to cases in which the Court found that a constitutional
doctrine barred the conviction or punishment of
someone,498 full retroactivity, even to
habeas claimants, was the rule. Justice Harlan strongly
argued that the Court should sweep away its confusing
balancing rules and hold that all defendants whose cases
are still pending on direct appeal at the time of a
law–changing decision should be entitled to invoke the new
rule, but that no habeas claimant should be entitled to
benefit.499

The Court has now drawn a sharp distinction between
criminal cases pending on direct review and cases pending
on collateral review. For cases on direct review, “a new
rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal,
pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a
‘clear break’ with the past.”500 Justice
Harlan’s habeas approach was then adopted by a plurality
in Teague v. Lane501 and then by the Court in Penry
v. Lynaugh.502 Thus, for collateral review in
federal courts of state court criminal convictions, the
general rule is that “new rules” of constitutional
interpretation, those that break new ground or impose a
new obligation on the States or the Federal Government,
announced after a defendant’s conviction has become final
will not be applied. For such habeas cases, a “new rule”
is defined very broadly to include interpretations that
are a logical outgrowth or application of an earlier rule
unless the result was “dic[p.686]tated” by
that precedent.503 The only exceptions are for
decisions placing certain conduct or defendants beyond the
reach of the criminal law, and for decisions recognizing a
fundamental procedural right “without which the likelihood
of an accurate conviction is seriously
diminished.”504

What the rule is to be, and indeed if there is to be a
rule, in civil cases has been disputed to a rough draw in
recent cases. As was noted above, there is a line of civil
cases, constitutional and nonconstitutional, in which the
Court has declined to apply new rules, the result often of
overruling older cases, retrospectively, sometimes even to
the prevailing party in the case.505 As in
criminal cases, the creation of new law, through
overrulings or otherwise, may result in retroactivity in
all instances, in pure prospectivity, or in partial
prospectivity in which the prevailing party obtains the
results of the new rule but no one else does. In two cases
raising the question when States are required to refund
taxes collected under a statute that is subsequently ruled
to be unconstitutional, the Court revealed itself to be
deeply divided.506 The question in Beam was
whether the company could claim a tax refund under an
earlier ruling holding unconstitutional the imposition of
certain taxes upon its products. The holding of a
fractionated Court was that it could seek a refund,
because in the earlier ruling the Court had applied the
holding to the contesting[p.687]company and
once a new rule has been applied retroactively to the
litigants in a civil case considerations of equality and
stare decisis compel application to all.507
While partial or selective prospectivity is thus ruled
out, neither pure retroactivity or pure prospectivity is
either required or forbidden.

Four Justices adhered to the principle that new law,
new rules, as defined above, may be applied purely
prospectively, without violating any tenet of Article III
or any other constitutional value.508 Three
Justices argued that all prospectivity, whether partial or
total, violates Article III by expanding the jurisdiction
of the federal courts beyond true cases and
controversies.509 Future cases must, therefore,
be awaited for resolution of this issue.

Supplement: [P. 687, add to text following n.509:]

Apparently, the Court now has resolved this dispute, although the principal decision is a close 5 to 4 result. In Harper v. Virginia Dep’t of Taxation,26 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” 27 Four Justices continued to adhere to Chevron Oil, however,28 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.29

Footnotes

487
For a masterful discussion of the issue in both
criminal and civil contexts, see Fallon &
Meltzer, New Law, Non–Retroactivity, and Constitutional
Remedies,
104 L.
Rev.1731 (1991).

491
Because of shifting coalitions of Justices, Justice
Harlan complained, the course of retroactivity decisions
“became almost as difficult to follow as the tracks made
by a beast of prey in search of its intended victim.”
Mackey v. United States,
401 U.S. 667, 676 (1971) (separate
opinion).

492
Robinson v. Neil,
409 U.S. 505, 507 (1973). The older
rule of retroactivity derived from the Blackstonian
notion “that the duty of the court was not to ‘pronounce
a new law, but to maintain and expound the old one.”’
Linkletter v. Walker,
381 U.S. 618, 622–623 (1965) (quoting 1
W. Blackstone, Commentaries *69).

503
Penry, supra, 492 U.S., 314. Put another way, it is
not enough that a decision is “within the ‘logical
compass’ of an earlier decision, or indeed that it is
‘controlled’ by a prior decision.” A decision announces
a “new rule” if its result “was susceptible to debate
among reasonable minds” and if it was not “an illogical
or even a grudging application” of the prior decision.
Butler v. McKellar,
494 U.S. 407, 412–415 (1990).

504
Teague v. Lane,
489 U.S. 288, 307, 311–313 (1989)
(plurality opinion); Butler v. McKellar,
494 U.S. 407, 415–416 (1990). Under the
second exception it is “not enough that a new rule is
aimed at improving the accuracy of a trial. . . . A rule
that qualifies under this exception must not only
improve accuracy, but also ‘alter our understanding of
the bedrock procedural elements’ essential to the
fairness of a proceeding.” Sawyer v. Smith,
497 U.S. 227, 242 (1990) (emphasis in
original).

505
The standard that has been applied was enunciated in
Chevron Oil Co. v. Huson,
404 U.S. 97 (1971). Briefly, the
question of retroactivity or prospectivity was to be
determined by a balancing of the equities. To be limited
to prospectivity, a decision must have established a new
principle of law, either by overruling clear past
precedent on which reliance has been had or by deciding
an issue of first impression whose resolution was not
clearly foreshadowed. The courts must look to the prior
history of the rule in question, its purpose and effect,
and whether retrospective operation will further or
retard its operation. Then, the courts must look to see
whether a decision to apply retroactively a decision
will produce substantial inequitable results. Id.,
106–107. American Trucking Assns., Inc. v. Smith,
496 U.S. 167, 179–186 (1990) (plurality
opinion).

506
James B. Beam Distilling Co. v. Georgia,
501 U.S. 529 (1991); American
Trucking Assns., Inc. v. Smith,
496 U.S. 167 (1990). And, of
course, the retirements since the decisions were handed
down further complicate discerning the likely Court
position.

507
Beam, supra. The holding described in the text is
expressly that of only a two–Justice plurality. Id., 501
U.S., 534–544 (Justices Souter and Stevens). Justice
White, Justice Blackmun, and Justice Scalia (with
Justice Marshall joining the latter Justices) concurred,
id., 544, 547, 548 (respectively), but on other, and in
the instance of the three latter Justices, and broader
justifications. Justices O’Connor and Kennedy and Chief
Justice Rehnquist dissented. Id., 549.

27
Id. at 97. While the conditional language in this passage might suggest that the Court was leaving open the possibility that in some cases it might rule purely prospectively, not even applying its decision to the parties before it, other language belies that possibility. “This rule extends Griffith’s ban against ‘selective application of new rules.’ ” [Citing 479 U.S. at 323]. Inasmuch as Griffith rested in part on the principle that “the nature of judicial review requires that [the Court] adjudicate specific cases,” Griffith, 479 U.S. at 322, deriving from Article III’s case or controversy requirement for federal courts and forbidding federal courts from acting legislatively, the “Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.” 509 U.S. at 97 (quoting American Trucking, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in which he denounces all forms of nonretroactivity as “the handmaid of judicial activism.” Id. at 105.

28
Id. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices disagreed in this case about the proper application of Chevron Oil.

29
But see Reynoldsville Casket Co. v. Hyde,
514 U.S. 749 (1995)
(setting aside a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation of that State’s statute of limitations in certain suits, in an opinion by Justice Breyer, Justice Blackmun’s successor); Ryder v. United States,
515 U.S. 177,
184–85 (1995)
(“whatever the continuing validity of Chevron Oil after” Harper and Reynoldsville Casket).